Case C-301/15, Soulier and Doke – objecting to a French out-of-print-book scheme [judgment 2016, ECLI:EU:C:2016:878]

If twentieth-century books are no longer in print but still protected by copyright, and French law creates a legal mechanism to ensure the digitisation of those works; then is not French law undermining the principle enshrined in the EU’s ‘InfoSoc’ Directive 2001/29 that it is the author who has the right to control ‘reproductions’ of his work?

Background
In 2012, the French legislature passed a provision that enabled out-of-print, twentieth-century books to be reproduced and represented in digital form.

The French legislature also set out the conditions under which authors or their heirs could object to this happening; however, their objections would be handled and determined via collecting societies, who ultimately could still give their consent to this use of out-of-print works.

Consequently, Soulier and Doke challenged the legality of the French provisions. They thought the effect of the French legislation eroded the right of authors (or their heirs) to consent to how their copyright-protected works are used and reproduced. That, they said, meant the French legislation was contrary to both the Berne Convention and EU law.

The main thrust of their argument concerned the EU’s ‘InfoSoc’ Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (OJ [2001] L167/10).

Article 2 of the Directive states:

CHAPTER II
RIGHTS AND EXCEPTIONS

Article 2
Reproduction right
Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a) for authors, of their works;
…

From this, Soulier and Doke inferred that the presumption was that consent was to rest with authors in respect of their works.

They then turned to Article 5 of the Directive, which deals ‘exhaustively’ with ‘exceptions and limitations’. They pointed out that the French legislative scheme did not seem to fall within any of exceptions or limitations that were listed in the Directive. And even if they were wrong on that, they warned that the French scheme would still also need to satisfy the ‘three-step-test’ – and this measure would fail because Article 5(5) requires:

The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.

Soulier and Doke did not rest there. They observed that collecting societies were not just made up of people who represented authors’ interests – an equal number of representatives expressed the views of those in the publishing industry. Those societies were also under no duty to be either impartial or independent. Accordingly, Soulier and Doke inferred that the French system had the potential to illegally expropriate authors of their property rights contrary to both the EU Charter and the ECHR.

The French Conseil d’État did not seem particularly impressed or persuaded by the great majority of the arguments which had been raised by Soulier and Doke but nonetheless it decided to make a preliminary reference to the CJEU.

Question Referred
According to the website of the UK’s Intellectual Property Office, the French Conseil d’État has asked:

Do the provisions… of Directive 2001/29/EC of 22 May 2001, preclude legislation… that gives approved collecting societies the right to authorise the reproduction and the representation in digital form of ‘out-of-print books’, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that it lays down?